R v Towle

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 109 of 2008

THE QUEEN
	v
THOMAS GRAHAM TOWLE

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JUDGES:	MAXWELL P, BUCHANAN and ASHLEY JJA
WHERE HELD:	MILDURA
DATE OF HEARING:	5 May 2009
DATE OF JUDGMENT:	3 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 280
JUDGMENT APPEALED FROM:	DPP v Towle (Sentence) [2008] VSC 101 (Cummins J)

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CRIMINAL LAW – Appeal – Sentence – Dangerous driving causing death (six counts) – Dangerous driving causing serious injury (four counts) – Driver aware of likely presence of young people near road – Warning to ‘take it easy’ – Whether conscious disregard of risk – Recklessness and negligence distinguished – Whether driving ‘in worst category’ – Relevance of knowledge of risk, degree of risk, extent of likely harm – Appropriateness of orders for cumulation where multiple victims – Whether total sentence for multiple counts limited to maximum penalty for single count – Sentence of 10 years with non-parole period of seven years not manifestly excessive – Application for leave to appeal refused – R v De Montero [2009] VSCA 255 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Rapke QC with Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr R Richter QC with Mr M J Croucher and Ms K Blair	Victorian Aboriginal Legal Service

MAXWELL P:

The applicant (‘T’) was driving on a country road in February 2006 when he lost control of his car. The car slewed across the road and struck a group of young people who had been attending a party in a nearby home. Six of them were killed. Four others were seriously injured.

T was charged with six counts of culpable driving causing death and four counts of causing serious injury negligently. He was also charged with one count of failing to stop after an accident; one count of failing to render assistance; and two counts of reckless conduct endangering serious injury.

In s 318(2) of the Crimes Act 1958 (Vic), Parliament has defined four categories of driving which will constitute culpable driving. Only two are relevant for present purposes. Under those provisions, a person drives a motor vehicle culpably if he/she drives the vehicle:

(a)recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or
(b)negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case;
…[1]

The charges against T were based on the second of these categories. That is, the Crown case was that he had failed ‘unjustifiably and to a gross degree’ to take reasonable care in the circumstances.

[1]Emphasis added.

The jury acquitted T on all of the culpable driving counts. In relation to each of the six deaths, however, the jury convicted T of the alternative offence of dangerous driving causing death. At the relevant time that offence was defined by s 319(1) in these terms:

A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of, or serious injury to, another person is guilty of an indictable offence …[2]

The offence of culpable driving causing death carries a maximum penalty of 20 years’ imprisonment. The offence of dangerous driving causing death, on the other hand, at that time carried a maximum of only five years’ imprisonment.[3] The offence of dangerous driving causing serious injury also carried a maximum of five years’ imprisonment.[4]

[2]Section 319 was subsequently amended by the Crimes Amendment (Child Homicide) Act 2008 (Vic) s 5, which split the offence of dangerous driving causing death or serious injury into separate offences with different maximum penalties. It came into operation on 19 March 2008.

[3]With effect from 19 March 2008, the maximum penalty was increased to 10 years: Crimes Amendment (Child Homicide) Act 2008 (Vic) s 5.

[4]That maximum remains the same – see Crimes Act 1958 (Vic) s 319(1A).

The jury also convicted T on four counts of dangerous driving causing serious injury. He was acquitted on the other charges. The judge sentenced T as follows:

COUNT OFFENCE MAXIMUM SENTENCE CUMULATION

1 Dangerous driving causing death 5y 3y 6m Base

2 “                  “          “         “ 5y 3y 6m 1y

3 “                  “          “         “ 5y 3y 6m 1y

4 “                  “          “         “ 5y 3y 6m 1y

5 “                  “          “         “ 5y 3y 6m 1y

6 “                  “          “         “ 5y 3y 6m 1y

7

Dangerous driving causing serious injury

5y

2y

6m

8

“  “         “          “

5y

1y

3m

9

“  “         “          “

5y

1y

3m

10

“  “         “          “

5y

2y

6m

Total Effective Sentence

Non-Parole Period

10y

7y

On 21 November 2008 T’s application for leave to appeal against his sentence was refused by Weinberg JA, under s 582 of the Crimes Act 1958 (Vic). T has exercised the right, which that provision confers, to renew his application for leave to appeal before a bench of three judges.

The submission for T was that the sentencing discretion had miscarried in one or more of the following ways:

(a)the factual basis on which the judge imposed sentence was inconsistent with the jury’s acquittal of T on the more serious counts of culpable driving causing death (Ground 1);
(b)the judge erroneously concluded that T’s driving ‘fell within the worst category of dangerous driving’ (Ground 2);
(c)there was ‘double punishment’ because T’s knowledge (that there were likely to be numerous young people in the vicinity of the road) was taken into account both in fixing the individual sentences and in the making of orders for cumulation between sentences (Ground 3);
(d)since all of the offences arose out of one act of dangerous driving, the total sentence imposed ought not to have exceeded the maximum of five years’ imprisonment available for a single count of dangerous driving causing death (Ground 4);
(e)the sentences imposed were manifestly excessive – that is, outside the sentencing range reasonably open to the judge in the circumstances of the case – and breached the principle of totality (Ground 5).

I have concluded that there was no sentencing error and that the application for leave to appeal must be refused. For reasons which follow, I consider that:

(a)there was no inconsistency between the factual basis of the sentencing and the acquittals on the culpable driving counts;
(b)the judge was entitled to view T’s driving as falling within ‘the worst category of dangerous driving’, that is, the worst category of the offence of which he was convicted;
(c)T’s knowledge that there were likely to be numerous young people in the vicinity of the road did not affect the orders for cumulation, though it was correctly identified as underlining the appropriateness of such orders being made;
(d)the total effective sentence which may be imposed for multiple offences of dangerous driving causing death is not limited to the maximum penalty applicable to one such offence; and
(e)the sentences imposed were within the range reasonably open to the judge in the circumstances and did not breach the principle of totality.

I. THE CHARACTERISATION OF T’S DRIVING – Grounds 1 and 2

The central argument advanced on T’s behalf was that the judge had, in effect, sentenced T for the offences of which the jury had acquitted him. That is, he was given a culpable driving sentence when his convictions were only for dangerous driving. This conclusion was said to follow, inevitably, from an examination of the length of the sentence and from the terms in which the sentencing judge explained his sentencing decision. Before considering that submission, it is necessary to summarise the factual background and to refer to the respective cases as presented at the trial.

Factual background

The collision which caused the deaths occurred at about 9:30 pm on Saturday, 18 February 2006. It occurred near the intersection of Myall Street and Boobook Avenue, Cardross (‘the intersection’). Cardross is a small town to the west of Red Cliffs, which itself is 20 kilometres south of Mildura. Myall Street runs east-west between Cardross and Red Cliffs. Boobook Avenue runs north-south and marks the boundary between the town of Red Cliffs to the east and the town of Cardross to the west. The area between Red Cliffs and Cardross is a rural area.

Myall Street is a surfaced road, six metres wide, with gravel and grass verges. It is unlit at night. The speed limit is 100 kph. As appears from the diagram attached to these reasons (see Appendix 1), a person driving along Myall Street from Cardross towards Red Cliffs encounters two bends and then a straight stretch of 300 metres leading to the intersection, at which point Myall Street curves slightly. There are no signs in Myall Street warning traffic of the intersection. There are, however, stop signs facing traffic travelling along Boobook Avenue to the intersection.

As the judge recorded in his reasons for sentence, the Saturday night in question was dry, clear and warm. A 16^th birthday party was being held at a house located in Myall Street, on the south-western corner of the intersection. At about 9:30 pm T drove from his home in Red Cliffs, a distance of 3.8 kilometres, in a westerly direction along Myall Street, to his brother’s house in Myall Street, Cardross. He drove with his two children, aged 10 and four years respectively, and with some blankets. The four year old child was on T’s lap throughout the journey.

The drive to his brother’s house took T past the house where the birthday party was being held. There were, as T observed, numerous children outside, in the vicinity of the party house.

T arrived at his brother’s house, which was 1.8 kilometres along Myall Street from the party house. He was there for a short time and then made to commence the return drive home. T’s brother and his partner had seen numerous children outside the party house as they drove past it shortly before T himself drove past. T’s brother said to him: ‘Did you spot the kids up there, Tom?’. T replied that he had. His brother then said to him, ‘Take it easy on the way home’.

On the return trip, travelling east along Myall Street, T negotiated the two curves in Myall Street. With his four year old son still on his lap, he drove along the straight stretch of some 300 metres towards the intersection. Moments prior to the collision, T’s car was heard by many witnesses, who were either party guests or were at the scene en route to other destinations. The sound of T’s car was variously described as ‘revving’, ‘roaring’, ‘whistling’ and ‘screaming’. The expert evidence assessed the speed of T’s car prior to the collision as not less than 99–100 kph and at 70–80 kph at the point of impact with the first of those who were killed.

The victims were standing on the south-east corner of the intersection, off the road. T drove through the intersection and, in attempting to negotiate the slight right-hand bend in the road, oversteered. He lost control of the vehicle and it collided with the group of people on the south-east corner. The car spun around about 90 degrees and was almost completely sideways as it came off the road.

T’s description of the collision

T did not give evidence at the trial. The Crown tendered as part of its case the record of interview which police conducted with T in the early hours of Sunday, 19 February 2006. The following excerpts from the interview are relevant to the issues raised on this appeal:

I was driving back from – from my brother’s place to – to my – to my place at 3 Nicholls Court and I got to a – I was doing about 90 kilometres an hour and I come up to a sharp corner. There was no warning … no speed warning to – to slow down at the corner or anything like that and by the time I realised that it was a sharp corner I – I lost control of the vehicle and tragically spun 300 and – 180 degrees and collided into people – people that were standing very close to the edge of the road … assume … were drinking and having some sort of party or something.
…
I’m absolutely devastated that – that I’ve injured anyone or killed anyone. I was only taking a quiet drive out to my brother’s and back where I was dro -, dropping off some blankets … the speed limit out there was around about 100 kilometres an hour and I had always thought that when you come up to a sharp corner there was a – there was a – a … a warning sign to say slow down to 40 kilometres or 60 kilometres with a – with a corner - … I come up to a particular corner and prob’ly doin’ about 90 kilometres an hour. 80, 90 kilometres an hour.   Somethin’ like that, I’m not sure. And by the time I got on the corner I realised that I wasn’t gonna make it around the corner, so I sort of hit the brakes hard and the car just took o-, took over and did what ever it wanted to do which was tragically do a complete 180 as it was skidding and – and – and headed towards the right hand side of the road where there was a bunch of – a bunch of people that – that got in the way of the impact of the car.
I don’t know the road very well at all and there’s so many roads at – at the back of – surrounding Red Cliffs, but every time that I’ve had to approach a corner like the corner where I hit those people there was – there would be – there was – there would be a sign to say a recommended speed to say what you should – the speed to do around that corner. I mean there was no speed and I feel as though that – that’s the reason why the accident happened.
…
[T]he fact that I’ve been arrested for culpable driving has actually, you know, put shivers up my bone really because I – I don’t believe I did – I did anything wrong. I don’t think I did anything that would cause anyone to be hurt on the road. It was a complete accident … no driver in the world would have been able to control that corner un-, unless he – unless there was a speed sign saying to slow down as the corner was approaching.
…
I’m gonna, for the rest of my life, stick to the fact that there was nothing I could do that would stop – that would have changed me from – from hitting them people and I – I – I just wish there was a – a bright yellow sign with a – with a speed limit written on it in black and a curved shaped black arrow heading towards the right warning me of a right hand corner where I had to slow down and – and do a certain speed.
…
I had complete control of the car. It was a corner that was … corner that came – came up to me … the corner was just – was too fast for me to be able to slow down quick enough.
…
I first seen [the group of young people] when I was – when I – when I had lost control of the car and it was more or less the – I don’t even like _ravele’ about it, you know. I don’t – I don’t – I don’t want to talk about it. I – if – I wish I had have seen them before I lost control of the car. I would’ve – I would’ve swerved the other way into – into – into trees, but unfortunately, that wasn’t the case. I’ve – I’ve – I’ve done … any normal driver would do, I think, and you know, if they – if they hadn’t have been standing there, then everything would have been fine.
…
Q.       So were the – did the kids – were the kids the reason that you lost control or you had lost control beforehand and the kids just happened to be unfortunately there at that time?
A.       Yeah, I – I’d say that’s more – that – that – that’s – that’s basically how it happened. I had lost control and the – the poor youths were in the wrong spot at the wrong time.[5]

[5]Emphasis added.

The Crown also tendered the transcript of a conversation between T and a police officer, recorded in a police vehicle immediately after T’s arrest. In this conversation, which took place about an hour before the record of interview, T gave his first account of what had happened. Senior counsel for the Crown early in his final address to the jury read the following extract from what T had said in that conversation:

And I came up to this corner and it just jumped out at me. … By the time I was at the corner it was pretty sharp. I put me foot on the brake and lost control of the car and then it went sideways into a group of people so close to the road.

The prosecutor also quoted from the continuation of the record of interview, conducted with T later in the morning following the collision. The relevant part of the prosecutor’s final address was in these terms:

Finally when we come to the interview conducted by Sergeant Cripps with the accused man which commences at 9.45 a.m. and again within a very short time at question 62 he is given an open book opportunity to tell the police what it was that happened and what it was that caused him to lose control of this vehicle and to collide so tragically with that group of young teenagers. It was as open as this. Sergeant Cripps said ‘OK, this prang that I’m talking about, what can you tell me about it?’ What he says is, in essence,
I come up to a particular corner and by the time I got on the corner I realised that I wasn’t going to make it around the corner. So I sort of hit the brakes hard and the car just took over and did whatever it wanted to do, which was tragically do a complete 180, as it was skidding, and headed towards the right-hand side of the road where there was a bunch of people that got in the way of the impact of the car.

Now what that demonstrates, members of the jury, in my respectful submission, is that he was able to give an account of himself in terms of what happened, an account that was consistent on each of the occasions that he gave it, effectively saying he just was presented at the last minute with this sharp bend and he just tried to deal with it at the time and he lost control and went off the side of the road after trying to brake. So sharp bend, tries to brake, then loses control and the car yaws off to the right-hand side of the road.

The Crown case before the jury was that T’s late realisation of the corner, and his consequent loss of control of the car, could be explained only by his having failed to pay ‘proper care and attention’ and having driven too fast:

Nor was there any mechanical fault in terms of the steering system and the brake system that would explain that loss of control, and there was certainly no person, or persons, or anything on the road that would account for the accused man losing control in the way that he did, had he been exercising proper care and attention and travelling at an appropriate speed for the circumstances that he was facing.
To get to the point at which [T] lost control of his car, he came round a bend and then faced what was a relatively flat stretch of road, 300 metres in distance, before he got to that bend and he got to that intersection. That is what faced him before he got to that bend and that intersection. You have to ask yourselves in those circumstances, how is it, how could it be that he would have such a late perception of that bend and of that danger that then presented itself to him, through his own carelessness, and greater, if it wasn’t for the fact that he wasn’t paying proper care and attention and it wasn’t for the fact that the speed at which he was going, whatever it was, it certainly was above the speed limit we would say and may well have been significantly so, was inappropriate in the circumstances that he faced on that night.

So there it was, a 300 metre stretch of bitumen road straight and flat. The weather conditions were fine. It was dark, sure, but the weather was fine, it wasn’t raining and the road was dry. A careful and attentive driver who drove along that 300 metre stretch of road on the approach to that bend and intersection, would have had ample warning of that slight curve in Myall Street and the intersection itself.

Senior counsel for T conceded in final address that ‘no one in their right minds would say it’s a sharp corner …’. Nevertheless, he submitted, the fact that T had said that to police meant that ‘that was his perception at the time and that’s why he oversteered.’ The defence case was that T had been momentarily distracted by a group of young people who – according to some of the evidence[6] – had been present on the north-east corner of the intersection. Senior counsel sought to explain T’s late perception of the corner in these terms:

So what happens is this. You’re driving at night and it’s pitch dark. I think everyone concedes that. Your lights may pick up the concrete structure,[7] because your car is really pointing that way, and whether or not you expect it, you see it. But what you also might see is something completely unexpected, and that is a group of young people, a group of persons. We don’t know who they are but we know they’re there. What does that mean? It means that perhaps for a second or a second and a half you are distracted by the unexpected, because what you’re expecting is to see a house lit up like a Christmas tree and you don’t see that. That momentary distraction of a second, a second and a half – you’ve heard Sergeant Bellion’s evidence about reaction times, normal reaction time between one and a half, three and a half seconds. These are normal people, not criminals, who have those sorts of response times and reaction times. That missing one and a half or one or two seconds of assessing what those people are doing there means that you have, if you are going at 90 K, for example, you’ve traveled 25, perhaps 50 metres, which is a long way there, and by the time you’ve travelled that and you see the corner, you see the curve which is a slight curve, it jumps at you because your mind was off it. Your mind was off it because you’re trying to avoid the people on the north-east corner, which is what he told his brother …

And again later in the final address:
If you take standard reaction times, varying let’s say from one and a half seconds to three and a half seconds, which is what he said they are, what’s required to analyse when you see a group of young people in the distance on the north-east corner if you think in the mind is you’ve got to think: do they pose a danger, are they a danger, are they going to run on to the road, are they on the road, are they off the road? And by the time that you’ve decided that they’re off the road, they’re not posing a danger, if you’d let, let’s say, two seconds go by, going at 90 kilometres an hour, that’s 50 metres gone by. You are now 50 metres from the intersection.
Fifty metres from the intersection you can see the curve and it rears up at you as though it was a sharp bend. That’s why he said what he said about a sharp bend jumping at him. Nobody in the world says it’s a sharp bend. It’s not. But the shock of seeing it, having lost a couple of seconds because of the perception of the kids – and he doesn’t blame the kids there, he doesn’t blame them. He didn’t see them as a source of danger, but he’d lost that one and a half, two or two and a half seconds in terms of perception reaction time. We’re talking at 90 kilometres an hour, not 100. At 90 kilometres an hour. Having lost those precious one and a half, or two, or two and a half seconds, the corner then rears at him and he oversteers. He oversteers and he causes the fatalities and the injuries.
[6]Senior counsel acknowledged that ‘a lot of witnesses’ had not seen anyone on that corner, but pointed out that ‘there are witnesses who did see them’.
[7]The ‘structure’ was a pumping station near the north-east corner of the intersection: see the passage in [53] below.

Was T denied the benefit of the acquittals?

Ground 1:the learned judge erred:

(a) in sentencing on the basis that the applicant knew that there were, or were likely to be, numerous persons in the area of the driving in question and that this was ‘not a case of unexpected circumstances [but] a case of multi-faceted lack of attention at high speed at night and with knowledge of risk’ when to do so (i) was inconsistent with the acquittals on counts 1-10 and 13-14 and (ii) was to sentence on a form of recklessness akin to that which is involved in ‘reckless’ culpable driving despite his never being so charged;
(b) in failing to sentence on the basis that the jury’s verdicts implied that the applicant did not believe that it was probable that he was driving in a dangerous manner in the moments leading up to the accident or that he was near the party house at that point.

On the appeal, senior counsel for T drew attention to the following passages in the judge’s sentencing reasons:

A most serious element of your criminal driving was not physical but psychological: you knew that there were, or were likely to be, numerous children in the area of the party house. You knew that they were, or were likely to be, a couple of kilometres (1.8 kilometres in fact) along Myall Street going east from your brother’s house, because you had just traversed it going west. You knew they were, or were likely to be, not far from the two curves in Myall Street, because you had just been there. You had just been reminded of it by your younger brother. Your knowledge that there were, or were likely to be, numerous persons in the relevant area is an especially egregious element of your dangerous driving, Mr Towle.
This is not a case of unexpected circumstances. This is not a case of a momentary lapse of attention. This is a case of multi-faceted lack of attention at high speed at night and with knowledge of risk. And with terrible consequences.
The jury found you not guilty on all counts of culpable driving causing death (counts 1–6) and of negligent driving causing serious injury (counts 7-10) as well as the other counts, and found you guilty on the alternative counts to counts 1-10, namely dangerous driving causing death or serious injury. It is for those dangerous driving offences that you are to be sentenced, Mr Towle. It is essential that the sentences, and the facts found in sentencing, are consistent with and faithful to the jury’s verdicts. The proper construction of the jury’s verdicts, in my view, is not that the jury were not satisfied of the constituent driving elements alleged of speed, inattention and knowledge, but that the jury characterised that driving – not the consequences, but the driving – not as gross criminal negligence,[8] but as dangerous. I proceed on that basis.[9]

[8]Expressed more fully, as stated in R v De’Zilwa (2002) 5 VR 408, [46] (Charles JA) and in whose reasons Ormiston JA and O’Bryan AJA agreed:

[T]he jury are required to find the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances and which involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment.

…

[footnote in original].

[9]DPP v Towle (Sentence) [2008] VSC 101, [12]–[14] (emphasis added, citations omitted except above n 8).

The submission for T was that, in the light of the acquittals on the culpable driving counts, it was not open to the sentencing judge to treat T’s knowledge of the risk as an aggravating circumstance in this way. The submission was developed as follows. The defence accepted that T was aware that there was a party going on and that there were children in the vicinity. The defence case as advanced before the jury was that, because of that awareness, T should be taken to have been alert to the risk associated with the presence of children around the party location. Further, T should be taken to have been on the lookout for, and ready to respond to, ‘visual cues’ which would have signalled to him that he was nearing the ‘party house’.

The house where the party was being held was, according to the evidence, brightly lit. As T travelled from east to west, on the way to his brother’s house, the party house was clearly visible on his left. Coming the other way, however, the party house was completely concealed by trees, so that the lights could not be seen. As a result, so the defence argued, T was not alerted to the fact that he was approaching the party location and did not have the opportunity to slow down, as it should be assumed he would have otherwise done.

According to the appeal submission, the fact that the jury had acquitted T on the culpable driving counts was explicable only on the basis of this ‘proper lookout’ hypothesis. That is, the Crown had failed to exclude beyond reasonable doubt the possibility that T was keeping a proper lookout as he drove in the direction of the party house. That being so, it was not open to the sentencing judge to be satisfied beyond reasonable doubt that T had not been keeping a proper lookout. While it was for the judge to find the facts on the basis of which sentence should be imposed, there could be no finding of fact which was inconsistent with the jury’s verdicts. Yet that was precisely what the judge had done, so it was said, by finding that T had taken no account, or no sufficient account, of the risk which he knew to exist.

In his final address to the jury, senior counsel had made the point in these terms:

You see his first account was that he’d tried to avoid one group of people and ended up hitting another. The significance of that is this. You’ve been to the location, you’ve driven through it, you’ve seen the difference of views going east to west as against going west to east. Just to inform you about how you regard the evidence in this case, so far as the journey from west to east is concerned, in the dark – remember, this is not a situation in which you are travelling from [east to west] as Mr Towle did earlier in the night without the slightest problem because the house was lit up and you could see that there was a party there.
…
I think I put it to someone the house was lit up like a Christmas tree. Well, it was certainly lit up like a birthday party, you would think, and anyone coming from east to west could not but see it and could not but see children around or young teenagers around. And indeed Mr Towle, who had young Tommy in his lap, did see it obviously. He went through there and there was no problem at all. What happens the other way? Having driven that road during the day a number of times, whether it’s six or a dozen times, doesn’t make the slightest iota of difference to the first time you drive it at night, although you may think you know it. You may think you know the road very well. Driving at night when you go from west to east in this particular instance the house was not lit up. You would not see the house until you were practically on it. So that [the prosecutor’s] hypothesis, yes, Mr Towle had seen a party. He knew there was a party. He must have, because he drove from east to west and he drove past it and there was no problem and there was young Tommy on his lap. No problem at all. But when you drive the other way, what do you think? You think, yes, there’s a party somewhere along here and I’m going to see it. I’m going to see the lights and I’m going to see the kids. But as you drive from west to east you don’t see it, and that’s the crucial difference. You do not see it. What you see is what is in your beam, light beam, and people drive in the country, as in the city, within the speed limit on low beams or high beams and they drive successfully and negotiate their journey successfully. What you do not see is that intersection until you’re on it, or until you’re a pretty close distance to it.[10]

[10]Emphasis added.

Then, during the submissions on sentence, the argument for T was put in these terms:

And so in interpreting what one is to make of it, the jury found it was objectively dangerous to approach the intersection at the speed with which he did and secondly that it was objectively dangerous to have the child on his lap even though the child may not have created the slightest distraction. It was objectively dangerous to drive in that manner. In my respectful submission that is the only safe basis to act upon in terms of sentencing facts. The child presented the potential for distraction but there was no evidence of actual distraction at the time of the commission of the offence.
…
His state of knowledge that there were people on the roadway was that as he was going to his brother’s place he appreciated that there was a party and he was seeing that, and there’s no complaint about his driving through, none. As he was going the other way he would have been looking for a lit up house in order to see where the party is, and as your Honour would have seen when we were driving there on the view, all of us, you can’t see it. You can’t see it. So that he spoke to his brother, yes. His brother asked him whether he’d seen. Yes. And he would have been in the situation in which he would be expecting to see a house lit up with either children or cars coming and going. He didn’t see any of that. It’s partly for that reason that the jury acquitted him of the culpable driving. Had the jury thought that he had seen the house and that he expecting to come across a party scenario, drove at a speed that was excessive in the circumstances, albeit probably at 100 let’s say, the jury would have convicted him of culpable driving. So part and parcel of the jury’s findings, in my respectful submission, has to be the notion that he was looking for a house that was lit up and couldn’t see it, and that’s in part due to the construction of that intersection and to the way that house was tucked behind the big shed and behind some trees. There were in fact no lights on the house, on the front, as far as the evidence stood. So that really needs to be addressed as one of the facts. He was not convicted of anything requiring intentionality or criminal negligence. He was acquitted of criminal negligence – which, of course, is also gross criminal negligence – in relation to the injuries; he was acquitted of the culpable driving charges. What that means is that in terms of the jury verdict they proceeded solely on the objectivity of the test. That didn’t require any finding about what he perceived, what he didn’t perceive, but had they found that he knew there was a party and disregarded the risk and drove too fast, they would have convicted him of the major charges.
…
We were talking about a man driving in the country who is expecting to see the sight of a party and yes, he failed to see it. He failed to see it because the place wasn’t lit up coming that way, going from west to east it was not lit up at all and he didn’t see it.
But what he did notice when they came up in the headlights was a group of people and he managed to avoid those and but for the billion and one chance that there was a group of people out of sight on the other side, there would have been no fatalities at all and there would have been no injuries and that’s the point that I’m seeking to make and in my respectful submission an assessment of his conduct and criminality, having regard to what the jury found about his conduct not meriting criminal punishment in terms of negligence, in my respectful submission bears out what I say and he needs to be given the benefit of that acquittal fully …[11]

[11]Emphasis added.

Central to this submission was the proposition that the jury would have convicted T of culpable driving ‘had they found that he knew there was a party and disregarded the risk and drove too fast …’.[12] A similar proposition was advanced on the appeal. Upon the facts as found by the judge, so it was argued, the jury must inevitably have found T guilty of culpable driving. That is, they would have had no alternative but to conclude that T had

failed unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case.

[12]Emphasis added.

It was also submitted that the judge’s findings were inconsistent with the jury’s having acquitted T of the two counts of recklessly endangering his children. According to the written submission:

It cannot be that the jury found that this was ‘not a case of unexpected circumstances’ but one of driving ‘at high speed’ and ‘with knowledge of risk’. Whilst it may have been open to find that the applicant at some point prior to the accident was aware that there may have been persons at the party house, the jury cannot have found that he believed he was near the party house or aware of any risk at the material time – namely, the point at which his driving was dangerous and resulted in the accident.
Had they made those findings, the jury would not have acquitted the applicant of the principal counts. There could be no knowledge of risk to the children at the party house unless he knew that he was driving dangerously at a point when he believed he was near the party house, but he could not have been acquitted of reckless endangerment if he had such a state of mind because such knowledge necessarily would mean that he foresaw that the placing of his children in danger of serious injury was a probable consequence of such driving. Equally, the jury would have found him guilty of culpable driving on the impugned findings of fact because they would have found driving at high speed with such knowledge to constitute gross negligence and such a high risk of harm as to merit criminal punishment.[13]
[13]Emphasis added.

No inconsistency

In my opinion, the basis on which the judge sentenced T was not inconsistent with the acquittals on the counts of culpable driving and recklessly endangering his children.[14] The submissions advanced on behalf of T overlook a fundamental distinction, between conscious disregard of a known risk on the one hand and a failure to take sufficient care to avoid or eliminate a known risk on the other. Conscious disregard of risk is what defines the legal concept of recklessness.[15] Failure to take sufficient care, on the other hand, is what defines the legal concept of negligence.
[14]Cf Cheung v R (2001) 209 CLR 1; R v Chamberlain [1983] 2 VR 511, 513.
[15]R v Burnside [1962] VR 96, 97; Nydam v R [1977] VR 430, 444; R v Nuri [1990] VR 641, 643–4; DPP (Vic) v Gany (2006) 163 A Crim R 323, 331 (‘Gany’); Brown v The Queen [2006] 1 AC 1, 19.

The culpable driving provisions themselves illustrate this distinction. The first of the four categories of culpable driving – ‘reckless culpable driving’, in s 318(2)(a) – is defined as ‘conscious and unjustifiable disregard’ of a substantial risk of death or infliction of grievous bodily harm. By contrast, the second category – ‘negligent culpable driving’, in s 318(2)(b) – is framed in the language of negligence. That offence is committed where a driver ‘fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case’. More than once, this Court has expressed the view that reckless culpable driving involves greater culpability than negligent culpable driving.[16] Consciously disregarding a risk is – generally – more serious than gross negligence.
[16]R v McGrath [1999] VSCA 197, [16] (Callaway JA, with whom Batt and Chernov JJA agreed); R v Toombs (2001) 34 MVR 509, 509 (Callaway JA), 513-14 (O’Bryan AJA); Gany (2006) 163 A Crim R 322, 331; R v Lam (2006) VSCA 162, [28]–[29].

Conscious disregard of risk is likewise the defining feature of the offence of reckless endangerment with which T was charged.[17] As the judge correctly explained in his charge, the jury could only convict T of that offence if they were satisfied

beyond reasonable doubt that the accused in fact foresaw that placing the child in danger of serious injury was a probable consequence of his driving in the circumstances. On that element, the prosecution must prove that the accused, himself, not some other person, but the accused, himself, in fact foresaw that placing the child in danger of serious injury was a probable consequence of his driving in the circumstances.

[17]R v Wilson & Carman [2005] VSCA 78, [17].

The jury were not so satisfied. They did not consider that T had driven as he did in conscious disregard of the risk of serious injury to his children. This conclusion may be thought unsurprising. The circumstances must be rare where a parent who is of sound mind and sober, as T was, would be found to have proceeded with a course of conduct knowing that to do so would expose his/her child(ren) to a risk of serious injury. Senior counsel for T in his final address to the jury described the charge as ‘preposterous and absurd’. Even the prosecutor implicitly acknowledged that the idea might seem improbable.

Likewise, I would discount the possibility of the jury having concluded that T drove in conscious disregard of a risk of death or serious injury to the children at the party house. Even though he was not charged with ‘reckless’ culpable driving, if the jury had been of the view that he had consciously disregarded the risk that he might cause death or serious injury to the children at the party, they would inevitably have convicted him of culpable driving.[18]
[18]Cf R v Guariglia (2001) 33 MVR 543, 545 (‘Guariglia’).

What matters for this sentence appeal, however, is that the judge made no finding that T had consciously disregarded the known risk. The finding which he made was a finding of knowledge of risk.[19] Not only was this finding open – as senior counsel for T conceded during argument on the appeal – but it was inevitable, given the evidence of T’s brother and the nature of the defence case. As noted earlier, the ‘proper lookout’ hypothesis advanced by the defence was premised on T’s having had knowledge of the party and of the presence of children in the vicinity of the party house.[20] It was that knowledge, and the associated awareness of risk, which – according to the defence – had put T ‘on the look out for the party house’.
[19]See [23] above.
[20]See [24]–[26] above.

T’s knowledge of the risk was one of the ‘circumstances’ of the case on which the Crown based its culpable driving case under s 318(2)(b). But it was equally relevant to the alternative counts of dangerous driving causing death and serious injury.

Although – as the judge pointed out to the jury – the alternative counts had been ‘scarcely mentioned’ by the Crown and not mentioned at all by the defence, the judge explained to the jury in clear terms the distinction between culpable driving on the one hand and dangerous driving on the other. He directed the jury that, if they found T not guilty on any of the counts of culpable driving or negligently causing serious injury, they would then consider

an alternative verdict, which is dangerous driving. Dangerous driving is less than criminal negligence, it is less than culpable driving, it is dangerous driving, and in law it is an alternative.

His Honour then directed the jury as follows:
For a conviction on any of the alternative counts of dangerous driving causing death or serious injury, the prosecution must prove that the accused, by driving the vehicle at a speed or in a manner that was dangerous to the public, having regard to all the circumstances of the case, caused death or serious injury to the person named in the count. …
Dangerous driving means that the accused created an objective risk of death or serious injury to others which a reasonable person in his situation ought to have recognised as a real danger to the public. That is what dangerous driving means.
Dangerous driving means that the accused created an objective risk of death or serious injury to others which a reasonable person in his situation ought to have realised – ought to have recognised as a real danger to the public. So you will see, ladies and gentlemen, that that is different to culpable driving with criminal negligence … because criminal negligence is failing unjustifiably and to a gross degree, whereas dangerous driving is less than that; it is that the accused created that an objective risk, not a gross degree and a high risk, but a risk objectively of death or serious injury to others which a reasonable person in his situation ought to have recognised as a real danger to the public. So it does not involve the degree of risk, the gross degree and the high risk that is involved in culpable driving, and it does not involve the element that the driving merited criminal punishment. It is less than that, dangerous driving causing death or serious injury.[21]

[21]Emphasis added.

The judge returned to this topic at the very end of the charge, evidently responding to a question raised by the jury. He said:

Dangerous driving means that the accused created an objective risk of death or serious injury to others which a reasonable person in his situation ought to have recognised as a real danger to the public. That is there on your Law Sheet. You have asked a very sensible question, Mr Foreman and members of the jury: ‘What does the word “objective” mean? “Objective risk?”’ ‘Objective’ means actual or real. So dangerous driving means that the accused created an actual or real risk of death or serious injury to others which a reasonable person in his situation ought to have recognised as a real danger to the public.
So that is what dangerous driving is: it is creating a risk which a reasonable person ought to have recognised as a real danger to others. That is, what a reasonable person in the situation of the accused; not what the accused thought, but what a reasonable person in his situation ought to have recognised as a real danger. That is what dangerous driving means.

Finally his Honour said:
You appreciate in this case, this is a criminal trial: the accused has been charged with criminal negligence, Counts 1 to 10; and no-one suggests that you should bring in a verdict of dangerous driving. The prosecution says this is criminal negligence, not dangerous driving. The defence says it is not dangerous driving, it is no offence at all. That is how the two sides put it.

It is also instructive to note the summary which his Honour gave the jury of the defence and prosecution cases respectively. (There was no complaint on the appeal about any aspect of this summary.) The defence case was summarised as follows:

[Senior counsel for the defence] said there were no visual cues for Mr Towle going from west to east. Coming the other way the house was lit up like a Christmas tree, but coming from [his brother’s] house to go back towards Red Cliffs it was not lit up at all.
…
[W]hat has happened, [defence counsel says], is that Mr Towle was not doing an excessive speed, there were no visual cues coming up to the corner, and this is a tragic case of an error at the last minute because of the conditions of the sub-standard road and no visual cues and it is a tragic accident, certainly not criminal negligence, certainly not culpable driving and certainly not negligent driving – or dangerous driving either, it is a tragic accident and no criminal conduct at all.

His Honour then summarised the prosecution case in these terms:

Mr Towle goes past the party house. Plainly nothing wrong at that time. But [the prosecutor] says what is relevant is that Mr Towle knew on the way back that there was a party two ks down the road. So he gets to Darren’s house, he comes back, he has still got Thomas on his lap, at 1.8ks he comes back knowing there is a party on the road, and his brother said, ‘Take it easy on the way home.’ ‘Yes, all right, bro.’ ‘Did you spot the kids up there, Tom?’ ‘Yes’, and with that knowledge he is coming back.
He has a near miss with Ms Rayson at the first corner. She had to pull halfway off the road not to be collected and he flew past her. He does get round the S’s all right. Coming up the straight he floors it and he heads down the straight at high speed, excessive dangerous speed at night, in an area he does not know, but where he knows there is [a] party with people, and straight into it he goes. The adults who estimate the speed are experienced persons and you would rely upon them.
The significant thing about all the children is every one of them said, ‘We were drawn to this car.’ Whether it is by roaring, or by whistling, or by revving, or by thrashing, all those words the children used, they were all drawn to this car. Why? It is a 100 K zone, people can drive at 100 K. Why were they drawn to this car, everyone? [The prosecutor] says, ‘There’s his speed for you.’ Plus witness after witness said, ‘It flashed past. It sped past.’ So there is his speed. [The prosecutor] said, ‘Not only has he got Thomas on his lap and he’s going at high speed at night, in an area he doesn’t know, but where he knows there’s a party, but significantly in the combination of those conditions, he does not keep a lookout. That’s why he lost it.

Plainly enough, the jury rejected both the Crown and the defence characterisations of what had occurred. They were not satisfied beyond reasonable doubt that T was guilty of ‘gross’ negligence. Equally, they were not persuaded by the defence submission that this was ‘a tragic case of an error at the last minute’. Instead, the jury by their verdict expressed themselves as satisfied beyond reasonable doubt that, judged by the objective standard which the judge had defined for them, T’s driving had created ‘a risk of death or serious injury to others which a reasonable person in his situation ought to have recognised as a real danger to the public’.

As the judge made clear to the jury, central to the Crown case was the contention that T had not been keeping a proper lookout. Importantly for present purposes, however, failure to keep a proper lookout is a factor relevant to any allegation of careless driving. Whether the charge was one of culpable driving or of dangerous driving causing death, it would be relevant for the prosecution to establish that the driver failed to keep a proper lookout. So too would it be relevant in a civil action alleging that negligent driving caused compensable loss.

What will vary, of course, is the degree to which the driver’s failure to maintain a proper lookout fell below the standard of care required of him/her in the circumstances. As this Court pointed out recently in R v De Montero:[22]

Descriptions of a manner of driving a vehicle as careless, negligent, dangerous or culpable have been employed at different times by the legislature, both in this State and in other jurisdictions to distinguish between degrees of disapprobation of the driving. They are differences of degree and not kind. They are utilised to reflect the degree of departure from the standard of care and the degree of risk to the safety of others.[23]

Thus, for culpable driving under s 318(2)(b), the prosecution must persuade the jury that
the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and … involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment.[24]

[22][2009] VSCA 255, [47] (citations omitted).

[23]Emphasis added. See also R v Buttsworth [1983] 1 NSWLR 658, 666.

[24]R v De’Zilwa (2002) 5 VR 408, 423.

It is simply not correct, therefore, to contend that the jury could not have been satisfied that T failed to keep a proper lookout. On the contrary, it is entirely consistent with the acquittals on the culpable driving charges and the convictions on the dangerous driving charges that the jury were satisfied beyond reasonable doubt that T failed to keep a proper lookout. That conclusion was clearly open given T’s own account of the collision and, in particular, of the (slight) bend having ‘jumped out’ at him.[25] It is striking, in my view, that T said nothing in any of the successive police interviews to suggest that he had been ‘on the lookout’ for the party house. Nor, as the judge reminded the jury, did his brother recall T saying anything about the party house being lit up.
[25]See [17]–[18] above.

The acquittals are to be explained by the jury’s not having been satisfied that T’s carelessness (including his failure to keep a proper lookout) was of the very high degree necessary to establish the more serious charge of culpable driving. That is exactly the view of the verdicts which prosecuting counsel urged the sentencing judge to take:

Little more can be interpolated from the jury’s verdicts of not guilty to the offences of culpable driving causing death and negligently causing serious injury than that they were not satisfied beyond reasonable doubt that the conduct alleged constituted gross criminal negligence – that is, they were not satisfied that the conduct constituted such a great falling short of the standard of care which a reasonable person would have exercised in all the circumstances, and involved such a high risk that death or serious injury would follow, that the driving causing death or serious injury merited criminal punishment.
However, the findings of guilt of the offences of dangerous driving causing death and dangerous driving causing serious injury necessarily involve an acceptance of the factual basis of the Crown case to the effect that the offender’s driving was the cause of the collision and that that driving was at a speed and in a manner that was, in all the circumstances, dangerous to the public.[26]

[26]Emphasis in original.

As to proper lookout, prosecuting counsel in their written submission on sentence contended that his Honour should be satisfied beyond reasonable doubt that:

[T]he offender was failing to keep a proper lookout prior to the loss of control and that a person maintaining a proper lookout would have had ample opportunity to see the bend at the intersection and negotiate it without difficulty; [and]
…
[T]he failure of the offender to properly negotiate the curve was solely as a result of his prolonged inattention, combined with the speed at which he was driving, resulting in a late realisation of the existence of the curve.

In my opinion, these submissions were correct and his Honour was entitled to be so satisfied.

Knowledge of risk as an aggravating factor in dangerous driving

As noted earlier, the sentencing judge said that ‘an especially egregious element’ of T’s dangerous driving was his knowledge that ‘there were, or were likely to be, numerous persons in the relevant area’.[27] His Honour later said this:

The three central facts … are that there was one limited course of driving, your knowledge of the presence or likelihood of numerous persons at the scene, and that there were six deaths and four sets of serious injuries. Your driving was one, limited, action: three hundred metres of speed, inattention and knowledge.[28]

[27]See [23] above.

[28]DPP v Towle (Sentence) [2008] VSC 101, [24].

In my view, the judge was right to treat knowledge of the risk as an aggravating circumstance. Other things being equal, a person who drives dangerously with foreknowledge of circumstances giving rise to risk will be more blameworthy than one who drives in the same manner but without that foreknowledge.[29] Thus, a person who drives too fast knowing that ahead lies a blind corner or a stretch of unmade road is more blameworthy than a person who drives at the same speed over the same road but in ignorance of what lies ahead.[30] The present case illustrates this point. A person who (like T) drives in a manner which creates a danger for people who, to his knowledge, are or are likely to be standing in the vicinity of the roadway is more blameworthy than a person who drives in the same manner but ignorant of the presence of those persons.
[29]See, for example, R v Bennett [2009] 2 Cr App R (S) 99, 651, 654, 656; Attorney-General’s Reference No 1 of 2009 [2009] 2 Cr App R (S) 114 742, 745. See also R v Coventry (1936) 59 CLR 633, 639–40 (Starke J): ‘… especially if he knew, for instance, that his brakes were out of order …’.
[30]See, for example, R v McGrath [1999] VSCA 197, [18] (Callaway JA): ‘The applicant was driving … over a stretch of road known to him to be dangerous.’

The question in each case is: what degree of care, and in particular what degree of alertness to risk, was reasonably to be expected of the driver in the circumstances? In the language of the definition of dangerous driving, the question is: what degree of danger would have been appreciated by a reasonable person in the position of the accused driver, having the knowledge which the accused had of the risks associated with the area in which the driving was to take place? To say that the driver with foreknowledge is expected to take greater care is quite different from imputing to the driver conscious disregard of the known risk. Rather, it is to make the obvious point that the better informed the driver is about what lies ahead, the more care can reasonably be expected of him/her.

As noted in Director of Public Prosecutions v Neethling,[31] the New South Wales Court of Criminal Appeal has identified a series of factors which may aggravate the seriousness of a particular offence of dangerous driving causing death or bodily harm.[32] Relevantly for present purposes, the list of aggravating factors includes: ‘(viii) ignoring of warnings.’ In the present case, as noted earlier, T had been specifically cautioned by his brother to ‘take it easy on the way home’. This was an express warning to take care on account of the presence of children outside the party house, as T and his brother had each seen a little while earlier.
[31][2009] VSCA 116, [31]–[32].
[32]R v Whyte (2002) 55 NSWLR 252, 286 (‘Whyte’). As this Court pointed out in DPP v Neethling [2009] VSCA 116, [26], in New South Wales the offences of dangerous driving causing death and aggravated dangerous driving causing death replaced the offence of culpable driving, which no longer exists in that State.

In his sentencing reasons, the judge recited the conversation which had taken place between the brothers and said: ‘You did the opposite of the responsible injunction of your younger brother.’ By way of explanation, the judge said:

On the return trip east, having crossed an intersection with Dairtnunk Avenue and having negotiated the two curves in Myall Street, you drove at high speed along a straight stretch of Myall Street some 300 metres towards it intersection with Boobook Avenue. Your speed and lack of care and attention were such that you missed every visual cue until it was too late to retrieve the situation. You failed to observe the headlights of the Poulton vehicle on Myall Street facing you although Mrs Poulton, its driver, observed yours; you failed to observe its right-hand blinker operating; you failed to observe the numerous people beside the road, the persons, if any, on the north-east corner, the concrete pumping station on that corner, and the olive trees beyond the pumping station directly in line of sight of your headlights. You failed to see that the roadway deviated to the right. You did not even see that there was a corner, as you told Senior Constable Smith the next morning. Until it was too late.[33]

[33]DPP v Towle (Sentence) [2008] VSC 101, [9].

On the appeal, senior counsel for T took issue with his Honour’s identification of the ‘visual cues’. Many of these factual findings depended on observations made during the view which judge, jury and counsel had had. This Court was not asked to have a view and accordingly cannot review those findings. In any case, for reasons which follow, a misdescription of one or more visual cues was immaterial.

Senior counsel for T contended on the appeal that it was not open to the judge to find that T had ‘done the opposite’ of his brother’s urging to ‘take it easy’. I disagree. However else T’s driving before the collision might be characterised, he did not ‘take it easy’. On the contrary, he drove at high speed, as the judge correctly found. The expert evidence concluded that his speed before he braked was 99–100 kph at a minimum.

The judge’s conclusion accorded with the evidence given by the large number of eyewitnesses who, in the moments before the collision, had had their attention captured by the approach of T’s car. The judge gave the jury a detailed summary of this evidence in his charge. Coming from adults and children alike, the evidence had a striking consistency. T’s car was ‘flying down the middle of the road’; it was ‘going very fast’; ‘it just flew past’; it was going ‘a lot harder and going a lot faster than other cars’ on that road that night; it ‘sounded like it was going flat out, like it was going hard’. One 17 year old said it was the speed of the car which at first attracted his attention. When asked by counsel to explain, he said: ‘Just for a little back road it was going extremely fast’. A 16 year old in the group said that it was the noise of T’s car which at first attracted her attention. Asked to describe the sound she said: ‘It was just like a car that you could tell was going extremely fast and gaining speed.’

When T’s brother urged him to ‘take it easy’, he was, in effect, encapsulating the standard of care which applied to T’s driving. Given T’s knowledge of the presence of children outside the party house, it was reasonably foreseeable that, if he did not exercise due care, those children (or some of them) might be injured or die. Armed with that knowledge, it was T’s obligation to drive at such a speed, and to maintain such a lookout, as would create no danger for those children. This was not, as senior counsel for T contended on the appeal, a ‘counsel of perfection’. It was simply the standard of care which those potentially at risk were reasonably entitled to expect of T in the circumstances.

It was clear on the evidence that T had failed, by a large margin, to meet that standard. He simply did not take the care which the circumstances demanded. In this sense, he ‘abandoned responsibility’ to those likely to be affected by his driving.[34] For reasons given earlier, however, so to conclude is not to suggest that T consciously or wilfully disregarded the known risk. Rather, it is to conclude that he failed to take the degree of care made necessary by that known risk.
[34]Cf R v Whyte (2002) 55 NSWLR 252.

The question for the jury was whether the lack of care which had been proved was ‘such a great falling short’ of what was required as would establish T’s guilt of negligent culpable driving. They were not satisfied that it was. The sentencing facts as found by the judge would, in my opinion, have justified the opposite conclusion. But they did not entail it. As already discussed, there is a continuum of negligence, and the adjectival language used to define the respective offences means that there can be no clear point of demarcation between conduct which constitutes the more serious offence and that which constitutes the less serious offence. Where T’s driving fell on that continuum was quintessentially a matter for the jury to decide.

Finally, paragraph (b) of ground 1 proceeds on a misconception, in my view. It was no part of the Crown case, that T ‘believed that it was probable that he was driving in a dangerous manner in the moments leading up to the accident’. Just as this was not a case about conscious disregard of risk, so it was not a case about ‘knowingly driving in a dangerous manner’. The case before the jury, and the basis of the sentencing, was that T failed to advert to the dangerousness of his conduct when a reasonable person in his position would have done so.[35]
[35]Cf Nydam v R [1977] VR 430, 444.

Ground 1 must be rejected.

‘In the worst category of dangerous driving’

Ground 2: the learned judge erred in concluding that the applicant’s driving ‘[fell] within the worst category of dangerous driving’.

This ground challenges the following conclusion stated by the judge:
Given the evidence proved beyond reasonable doubt of the dangerous driving including knowledge, I consider that your driving on the fatal night falls within the worst category of dangerous driving.[36]

According to the written submission:
[T]he dangerous driving was not in the worst category. Whilst the speed and inattention was such as in the particular circumstances to amount objectively to dangerous driving, the speed was not high. At the lower end of the range estimated by the expert, the speed just prior to the loss of control was 98 kph – ie within the speed limit … [T]he dangerous driving occurred over a brief period. There were no advisory signs prior to the corner. There was no evidence of alcohol. The applicant was driving too fast for the corner/ intersection which, perhaps through misjudgement or inattention, came upon him all of a sudden.

[36]DPP v Towle (Sentence) [2008] VSC 101, [21].

In oral argument, senior counsel for T submitted that the judge’s findings showed that he had been emotionally overborne by the enormity of the loss of life. That is, in arriving at his conclusion that this driving was ‘within the worst category of dangerous driving’, his Honour had allowed the extent of the loss of life and serious injury to distort, impermissibly, his assessment of the objective dangerousness of the driving.

In my view, these submissions must be rejected. The finding that T’s driving was ‘in the worst category’ was well open to the judge. As his Honour’s reference to knowledge makes clear, this was a conclusion not just about the dangerousness of the driving but about T’s culpability in the circumstances.[37] I have already sought to explain why T’s knowledge of the risk was properly to be regarded as a major aggravating factor. To repeat – his foreknowledge made his lack of care far more blameworthy than if he had been driving along Myall Street ignorant of the presence of children near the road up ahead.
[37]See DPP v Neethling [2009] VSCA 116, [39].

It was also relevant to T’s culpability that, as the judge pointed out, T ‘knew that there were, or were likely to be numerous children in the area of the party house.’[38] To say that T had knowledge of the risk is to say that he was aware of a risk to – potentially – a large number of people. Plainly enough, a person who drives dangerously having knowledge of large-scale risk is more culpable (other things being equal) than a person who does so knowing only of a small risk. As the New South Wales Court of Criminal Appeal said in R v Price:[39]

[I]t is a different situation where the offender knows the extent of the risk that was being created because he or she was aware of persons actually being place in danger at the time of the driving. For example it must be the case that the moral culpability of a driver of a bus full of passengers who is driving dangerously is worse than the moral culpability of the lone person driving the family vehicle in the same manner. So in the present case the fact that the respondent was driving two passengers in his vehicle at the time of the accident increased his moral culpability for driving in a manner dangerous …

[38]DPP v Towle (Sentence) [2008] VSC 101, [12] (emphasis added).

[39][2004] NSWCCA 186, [36] (Simpson and Howie JJ, with whom Hulme J agreed).

At the same time, the sentencing court’s assessment of the dangerousness of the driving is also informed by the extent of the risk which it created. As this Court said recently in R v De Montero:[40]

The degree of risk or danger arising from the driving informs the characterisation of the driving. That is to say, the degree of turpitude of the driving will vary according to the gravity of the risk created by the driving.[41] Thus Wells J in Pope v Hall considered that the combination of the following two factors determined how dangerous the driving was:
the degree of risk that something untoward will happen, and the degree of risk that if something untoward does happen, the damage caused will be more, rather than less serious.[42]

In short, ‘dangerousness of driving is informed by the degree of risk of harm being caused and the extent of potential harm.’[43]

[40][2009] VSCA 255, [55].

[41]R v Seymour [1983] 2 AC 493, 506–7 (Lord Roskill).

[42](1982) 30 SASR 78, 79. Pope v Hall was applied in Firth v Prestwood (1987) 44 SASR 427; Owen v Connellan (1991) 53 A Crim R 236; Senior v Police [2005] SASC 88.

[43]R v De Montero [2009] VSCA 255, [63].

As to the first of these matters, the judge was entitled to conclude that by driving as he did – at 100 kph, at night, on a stretch of road he did not know well – T created a high degree of risk of harm. The degree of risk was heightened by the fact that T was driving with his two year old son on his lap. As senior counsel for T conceded before the sentencing judge – properly, in my view – the verdicts showed that the jury regarded this, together with the ‘excessive speed’, as contributing to the ‘objective’ dangerousness of the driving. The objective danger was that T would be less well able to deal with any sudden eventuality than if he was driving unencumbered.

As to the second – the extent of the harm – the fact that numerous young people were in the vicinity of the roadway meant that ‘if something untoward did happen’, the damage caused would be very grave indeed. Both these matters – the degree of risk and the extent of likely harm – made the driving ‘objectively’ dangerous, that is, dangerous irrespective of T’s awareness. As Barwick CJ said in McBride v The Queen:[44]

It is the potentiality in fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public …

[44](1966) 115 CLR 44, 50.

When these aspects of the dangerousness of the driving are combined with T’s heightened culpability because of his foreknowledge of the risk, his driving was, in my view, properly to be characterised as ‘in the worst category of dangerous driving’. This conclusion is unaffected by the fact that T was not under the influence of alcohol and was not observed to be driving erratically. Ground 2 therefore fails.

II. THE SENTENCE IMPOSED

Grounds 3, 4 and 5 were directed at the sentence which his Honour imposed on T. Those grounds were in these terms:

Ground 3: The learned judge erred in cumulating by reference to his finding as to the applicant’s knowledge of the presence or likely presence of numerous persons in the area when he had already taken that finding into account in fixing each of the individual sentences.
Ground 4: The learned judge erred in imposing a total effective sentence twice the maximum penalty for a single offence, when all of the offences arose out of the one act of dangerous driving.
Ground 5: The individual sentences, the orders for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive and in breach of totality.

I deal first with the sentences imposed on the individual counts, and then with the arguments relating to the orders for cumulation and the total effective sentence.

As noted earlier, the maximum penalty for dangerous driving causing death was, at the relevant time, five years’ imprisonment. (In 2008, the Victorian Parliament doubled the maximum penalty to 10 years.) The primary submission for T was that the sentence of three and a half years’ imprisonment imposed on each of the counts of dangerous driving causing death was manifestly excessive. Senior counsel for T accepted in argument that this contention could only succeed if it were established that no reasonable judge could have imposed that sentence on this driver for this driving in these circumstances.[45] Put another way, T had to establish that the sentence imposed fell outside the range reasonably available to the sentencing judge in the circumstances.
[45]See, for example, R v Abbott [2007] VSCA 32.

In my view, the individual sentences of three and a half years on the counts of causing death, and of two years and one year respectively on the counts of causing serious injury, were within the sentencing range open to the judge in the circumstances. In large part, this conclusion is to be explained by what I have already said about T’s high degree of culpability for what was, in the circumstances, highly dangerous driving.

It was submitted for T that the head sentences could not be justified when regard was had to the following matters:

·T’s admissions to police – that he had had his son on his lap and that he had been driving ‘at about 90 kph’;
·as the sentencing judge accepted, T had offered – both before and after the committal – to plead guilty to the offences of which he was convicted;
·the judge’s finding that T ‘[had] remorse for these crimes’;[46]
·as the judge found, T and his family had conducted themselves ‘with propriety’ throughout the proceedings and had ‘borne a heavy burden’ of the proceedings;[47]
·as the judge found, T’s period in detention since his arrest two years earlier had been ‘especially restrictive and burdensome, added to by the prospect and uncertainty of these proceedings and by the consciousness of [his] offer to plead guilty to the crimes of which ultimately [he was] convicted’;[48]
·as the judge found, future incarceration was ‘likely to be more restrictive than usual’;[49]
·the judge’s finding that T had ‘good prospects for rehabilitation’;[50] and
·the judge’s finding that ‘special deterrence is now of lesser significance and is subsumed in the element of reformation.’[51]

[46]DPP v Towle (Sentence) [2008] VSC 101, [18].

[47]Ibid [17].

[48]Ibid.

[49]Ibid.

[50]Ibid [18].

[51]Ibid [20].

Having made the findings referred to in the previous paragraph, the sentencing judge said:

The primary principles of sentencing here relevant are denunciation, punishment, general deterrence and reformation: denunciation, because the court and the community denounce your conduct and its devastating consequences; punishment, because you are to be punished for that conduct and its consequences; general deterrence, because the deterrence of others from criminal driving is an important function of sentencing in such cases; and reformation, because that is always important.[52]

The judge then stated his conclusion that the driving fell within ‘the worst category of dangerous driving’ and continued:
The sentences imposed on each count also reflect the mitigatory factors I have stated and particularly your preparedness to plead guilty before both committal and trial and your reformation.[53]

[52]Ibid (citations omitted).

[53]Ibid [21].

Of the four sentencing criteria which his Honour highlighted, three – denunciation, punishment and general deterrence – pointed towards a higher sentence. It is, of course, well-established that general deterrence is of great importance for driving offences which result in death or serious injury. This point was made again, forcefully, by this Court in Gany.[54] That was a case where grossly negligent driving had resulted in serious injury to children in a schoolyard. The Court (Chernov, Vincent and Redlich JJA) said:

But the respondent’s extreme remorse, his steps towards rehabilitation and the respondent’s suffering and deprivation during his earlier life had to be considered in conjunction with other important sentencing principles, including general deterrence. Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation. No-one likes sending such people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public. This Court has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing injury, that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence. In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process. Denunciation and general deterrence must be at the forefront of the sentencing synthesis.[55]

[54](2006) 163 A Crim R 322, 333–4.

[55]Ibid [35] (citations omitted). See also DPP v Neethling [2009] VSCA 116, [30].

Moreover, although the judge did not develop the point, denunciation was a matter of considerable importance in this case. His Honour was right to say that ‘the Court and the community denounce [the] conduct and its devastating consequences.’ The imposition of sentence for serious criminal conduct is (amongst other things) an expression of the community’s condemnation of what has occurred. Denunciation contributes to, but is distinct from, general deterrence. As the Court of Criminal Appeal said 15 years ago in R v Penn,[56] one of the reasons for community revulsion at this kind of offending is ‘a general recognition of the needless waste of human life together with sorrow and distress that is usually [its] concomitant’.
[56](1994) 19 MVR 367, 370.

In cases such as these, sentencing performs an important function of social rehabilitation. As this Court said recently in Director of Public Prosecutions v Neethling,[57] also a case of dangerous driving causing death:
[57][2009] VSCA 116, [56]–[58].

The rationale of the criminal law is to minimise the damage occasioned by anti-social behaviour, by limiting the occasions on which it occurs, by reinforcing the values of the community, by vindicating the rights of victims and by rehabilitating offenders. The sentencing function enables the courts, on behalf of the community, to state with crystal clarity that conduct of the particular kind will not be tolerated.
Sentencing performs an important function of social rehabilitation. As Vincent JA said in Director of Public Prosecutions v DJK:[58]
This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim’s perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.

In our view, those remarks apply with particular force to an offence of this devastating kind. Similar concerns appear to have informed the statement of Hunt CJ at CL in Musumeci, that ‘the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.’[59] Similar sentiments were expressed by Spigelman CJ in Jurisic:
It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation, courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishment. Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict, but that we live in a society which values both justice and mercy.[60]

[58][2003] VSCA 109, [18].

[59](Unreported, Hunt CJ at CL, McInerney and Hulme JJ, New South Wales Court of Criminal Appeal, 30 October 1997) 5.

[60](1998) 45 NSWLR 209, 221.

Although it was not raised in the written submission on appeal, senior counsel for T in oral argument identified as an additional factor in T’s favour that there was an ‘absence of relevant driving offences’. On the plea, T admitted a number of prior convictions for driving offences, as follows:

Date of conviction Relevant Offence(s) Sentence

August 1995 Driving with blood alcohol concentration over 0.05 per cent. Fine; licence cancelled; 11m disqualified.

April 2000
Driving unregistered vehicle (2 charges).
Fine.

October 2001 Driving whilst unlicensed. Driving with blood alcohol concentration exceeding 0.00 per cent. Fine; licence cancelled; 15m disqualification.

April 2002 Driving whilst unlicensed. Driving unregistered motor vehicle. Fine; licence cancelled; 6m disqualification.

May 2002
Driving whilst disqualified (2 charges).

Driving unregistered vehicle (2 charges).
Aggregate fines $3700; licence cancelled; 12 m disqualification.

May 2002 Driving whilst disqualified. ICO.*

June 2002 Driving whilst disqualified. Driving unregistered vehicle. Fine; 7m imprisonment.*

November 2002
Driving whilst disqualified (2 charges).

Driving unregistered vehicle (2 charges).
Fine; 2m imprisonment.

(*On each of these occasions, the sentence was for multiple counts, including a number of non-driving offences).

On the appeal, as on the plea, senior counsel argued that these were not ‘relevant’ prior convictions, because ‘there are no prior convictions that show that he is a dangerous driver or a danger to the community driving a motor vehicle or anything of the kind.’ It was submitted on the plea that:

whilst he has an awful lot of drive whilst disqualified convictions, none of them carry with them bad driving, none of them. So whilst it might be said, and indeed was said, that a course of conduct in the years 2001–2002 indicated a disregard for the law because he was driving when he was not supposed to be driving, whilst it might indicate that, it does not indicate that he drove badly at all for that whole period of time …

In the event, the prosecution did not seek, and the judge did not make, any finding that T’s prior convictions militated in favour of a longer sentence. This may well have reflected an acceptance of the defence submission that, after the last of the convictions in November 2002, T had ‘pulled himself together, he got a licence, [and] the licence he was driving on at the time was a full licence.’ This turnaround was said to be reflected in the fact that T had no further convictions, whether for traffic offences or otherwise, after November 2002 until this incident.

Whatever else might be said about the prior convictions, they could not in my view assist T on sentencing or on this appeal. I refer in this regard to what Winneke P (with whom Brooking and Charles JJA agreed) said in Guariglia,[61] as follows:

Before sentence [the applicant] admitted 162 prior convictions from six court appearances spanning a period from November 1988 to October 1993. In those prior convictions were included six for driving while disqualified, one for driving while unlicensed and one for driving in a manner dangerous to the public. In the face of the record his Honour was I think justified in saying when imposing sentence that:
Your prior convictions against the road laws in my view show a flagrant disregard for the laws of this state. One might be forgiven for thinking that your conduct on this occasion as in the past demonstrates a contempt for the law and thoughts that such laws do not apply to you.

[61](2001) 33 MVR 543, 544.

Although T had no prior conviction for dangerous driving, he had been convicted on six separate occasions of driving while unlicensed or disqualified. Had the sentencing judge been minded to do so, he might well have viewed T’s prior convictions as likewise showing ‘a flagrant disregard for the laws of this state’. That he did not do so was obviously to T’s benefit.

The applicable sentencing range

At the request of the Court, the Director (who appeared on the appeal) supplied details of sentences imposed in the period 2006–09 for the offences of dangerous driving causing death and dangerous driving causing serious injury respectively. I have assembled that information, together with details of cases decided since the present appeal was heard, in Table A (dangerous driving causing death) and Table B (dangerous driving causing serious injury), which are attached to these reasons.

As the Director pointed out, the sentences imposed for dangerous driving causing death cover the entire range of dispositions, from community-based orders and intensive correction orders through wholly and partially suspended sentences of imprisonment to sentences of imprisonment for periods ranging from as little as 12 months (R v Martinez)[62] to as much as four years (R v Naumann).[63] (I note that 14 of the cases in Table A involve sentences in the range 15–18 months).
[62][2008] VSCA 165.
[63][2006] VCC 810 (‘Naumann’).

Sentences for dangerous driving causing serious injury likewise vary enormously. As appears from Table B, they range from community-based orders (DPP v Oates)[64] through wholly and partially suspended sentences of imprisonment to a sentence as high as three years and six months’ imprisonment (R v Tozer).[65] Paradoxically, the proportion of cases in which the driver was sentenced to imprisonment for two years or more is higher for dangerous driving causing serious injury (eight of 20) than for dangerous driving causing death (10 of 34). Moreover, with the exception of Naumann,[66] the highest sentence for either offence in this period was for the lesser offence, that being the sentence of three years and six months in Tozer.[67]
[64][2007] VSCA 59.
[65](Unreported, County Court of Victoria, Judge McInerney, 8 February 2008) (‘Tozer’).
[66][2006] VCC 810.
[67](Unreported, County Court of Victoria, Judge McInerney, 8 February 2008).

As the Director pointed out in argument, Mr Tozer made an unsuccessful application for leave to appeal against his sentence, on the ground that it was manifestly excessive. It is instructive to set out what Nettle JA said in his reasons for concluding that that ground of appeal was not reasonably arguable:[68]

The sole proposed ground of appeal is manifest excessiveness. The applicant contends that the sentences of three years and six months imposed on the counts of dangerous driving causing serious injury were manifestly excessive, given that the maximum penalty for the offence is only five years’ imprisonment, and in view of the extent to which the victims have recovered from their injuries. Counsel for the applicant also stresses the finding by the judge that the commission of the offences was contributed to by the applicant’s resort to alcohol as a consequence of the sexual abuse to which he was subjected as a child, his immediate and persisting remorse, his co-operation with the police and his early plea of guilty and prospects of [rehabilitation].
In my view, each of the individual sentences, total effective sentence and non-parole period was within the range. As the judge found, each of the three offences was within the higher level of the scale of seriousness for offences of this kind. The injuries which they caused and the effects of those injuries on the victims could not be over-stated. The applicant’s childhood deprivations, earlier motor accident and poly-substance abuse provided, as the judge said, a possible explanation for the outrageous behaviour that constituted the offences. But it was not an excuse, and the applicant’s remorse and cooperation with the police, while laudable and warranting a mitigation of the penalties which would otherwise have been imposed, did not detract from the need for a sentence adequate to express the court’s denunciation, provide adequate general and specific deterrence, and importantly in this case, to impose a level of punishment proportionate to the gravity of the offending and the consequences for the victims.[69]

[68]See R v Raad [2006] VSCA 67.

[69]R v Tozer (Unreported, Supreme Court of Victoria, Court of Appeal, Nettle JA, 28 November 2008), [3]–[4].

It is not surprising, in my view, that there should be such variation in sentencing for these driving offences. So much depends, necessarily, upon the circumstances in which the death or serious injury occurs, since they will affect the sentencing court’s conclusions as to the degree of lack of care; the dangerousness of the driving; the nature and extent of the risk created by the driver; and the nature and extent of the harm caused.

It is sufficient for present purposes to say that this examination of current sentencing practice does not suggest any error in the sentences here imposed. In my view, current practice gives ample support for the conclusion that, in a case falling into the ‘worst category’, sentences of three years and six months for each of the offences involving death – and sentences of one year and two years for the offences involving serious injury – were within range, full weight being given to the mitigating factors which the judge properly took into account.

As the Director pointed out in argument, when the entire range of possible circumstances must be accommodated within a sentencing range limited by a maximum penalty of five years, mitigating factors will be less obviously reflected in the sentence than if the maximum were, say, 15 or 20 years. The sentencing task here was made all the more difficult because the same maximum applied both where the dangerous driving caused death and where it caused serious injury. As Table B shows, significant sentences were merited on the ‘serious injury’ counts. In my opinion, the sentences imposed on the respective charges reflected the judge’s appreciation of the need for appropriate differentiation between those counts involving death and those involving serious injury.

The orders for cumulation

Ground 3 takes issue with the following passage in the sentencing reasons:

The three central facts – not the only facts, all of which I have reviewed above, but the three central facts – are that there was one limited course of driving, your knowledge of the presence or likelihood of numerous persons at the scene, and that there were six deaths and four sets of serious injuries. Your driving was one, limited, action: three hundred metres of speed, inattention and knowledge. It was not extensive in time or place. Further, because there was only one, limited, course of conduct – one action, as the authorities say – it would be wrong in law and in fact to double count or to double punish, let alone to count ten times or to punish ten times. But it would equally be wrong to fail to take into account on sentence, in particular when you knew of the presence or likely presence of numerous persons in that area, that your dangerous and criminal driving caused six deaths and four sets of serious injuries. It is therefore appropriate to direct an amount of cumulation of sentence on these counts.[70]

[70]DPP v Towle (Sentence) [2008] VSC 101, [24] (emphasis added).

The submission for T was that the judge here

erred in cumulating by reference to his finding as to the applicant’s knowledge of the presence or likely presence of numerous persons in the area when he had already taken that finding into account in fixing each of the individual sentences.

By doing so, it was said, his Honour had impermissibly imposed double punishment.

I disagree. The law is clear that the judge was bound to take into account the fact that T’s driving had caused multiple deaths and multiple sets of serious injuries. As prosecution counsel had pointed out to the judge in their detailed written submission on sentence, the 2001 decision of this Court in Guariglia[71] explained in unambiguous terms why it was both appropriate and necessary that there be orders for cumulation where criminally bad driving had caused multiple deaths or injury. Cumulation was both appropriate and necessary in the present case irrespective of T’s foreknowledge. The judge was entitled, nevertheless, to point out that T’s foreknowledge reinforced the need for cumulation.
[71](2001) 33 MVR 543, 547.

In Guariglia,[72] the 26 year old offender was driving at high speed and in disregard of road rules when he struck two pedestrians, both of whom died from their injuries. He was convicted of two offences of causing death by culpable driving and was sentenced to six years’ imprisonment on each count. The sentencing judge ordered three years (50 per cent) of the sentence imposed on the second count to be served cumulatively with the sentence imposed on the first, giving a total effective sentence of nine years’ imprisonment. The Court of Appeal dismissed the application for leave to appeal against sentence, holding that the head sentence was within the range available to the sentencing judge. Winneke P said:

In many cases which have come before this Court of which Musson[73] and Taylor[74] are examples, the same driving has caused death to one victim and injury to another, leading to sentences imposed for culpable driving causing death on the one hand and negligently causing serious injury on the other. Cumulation has been ordered of a portion of the sentence for the latter offence upon the sentence for the former, for the purpose of recognising that the two offences have been committed against two different victims. …
No different principle is involved, in my view, where the offences have resulted in multiple deaths, save that the maximum penalties available are much greater. So long as the cumulation does not offend the principle of totality it is, as I see it, properly within the exercise of a sound discretion to recognise the fact that the culpable driving has caused multiple deaths by cumulating a sensible portion of the sentence imposed for one offence upon the sentence imposed for the other.[75]

[72]Ibid.

[73]R v Musson [1997] 1 VR 656.

[74]R v Taylor [1999] VSCA 206.

[75]Ibid [547] (Brooking and Charles JJA agreed).

The same issue arose in Director of Public Prosecutions v Solomon,[76] decided by this Court in July 2002. There, the offender had pleaded guilty to two counts of culpable driving causing death and was sentenced to six years’ imprisonment on each count. One year of the sentence imposed on the second count was ordered to be served cumulatively on the sentence on the first count, giving a total effective sentence of seven years’ imprisonment. A non-parole period of four years was fixed. The Court of Appeal upheld an appeal by the Director of Public Prosecutions on the ground that the sentence was manifestly inadequate.
[76](2002) 36 MVR 425 (‘Solomon’).

In resentencing, the Court reimposed the head sentence of six years on each count of culpable driving, but ordered that three years (50 per cent) of the sentence imposed on the second count be served cumulatively on the sentence imposed on the first count, giving a total effective sentence of nine years. The non-parole period was increased to six years. The increases were said to be necessary ‘to maintain proper sentencing standards in this State’. The relevant part of the judgment of Winneke P (with whom Buchanan JA and O’Bryan AJA agreed) was in these terms:

[T]he cumulation of only one year of the sentence imposed on the second count upon the sentence imposed on the first count fails to signify the overall gravity of the respondent’s conduct, tending to treat, as it does, the death of the younger victim as a meaningless statistic, when the victim impact statements eloquently demonstrate that, in essence, a generation of children was lost. It is true, as his Honour said, that in cases of this sort where multiple deaths ensue, due regard must be paid to the principles of totality and to the fact that the multiple deaths arose from a single course of driving conduct. But, in my opinion, it is pushing those principles too far to cumulate only one year of the sentence on the second count upon the six years imposed upon the first count. Even in cases where counts of culpable driving have been joined with counts of negligently causing serious injury, this Court has expressed concern that the minimal cumulation driven by the five-year maximum sentence for the latter offence tends to circumscribe appropriate punishment (cf R v Taylor;[77] R v Guariglia[78]).[79]

[77][1999] VSCA 206, [13].

[78](2001) 33 MVR 543.

[79]Solomon (2002) 36 MVR 425, [19].

In R v Scott,[80] where the offender had been convicted of one count of culpable driving and one of negligently causing serious injury, the Court went so far as to say that it was

incumbent upon the judge … to cumulate a portion of the sentence on [the serious injury] count. Otherwise the victim, who – as the judge noted – is maimed physically and psychologically for life – becomes a ‘meaningless statistic’.[81]

[80](2003) 141 A Crim R 323.

[81]Ibid 336 (Winneke P, with whom Phillips and Buchanan JJA agreed). See also DPP v Whittaker (2002) 5 VR 508, 514; Gany (2006) 163 A Crim R 322, 331–2.

It was common ground on the present appeal that some cumulation was appropriate. The Director pointed out that the offence was defined in each case by reference both to the act of driving dangerously and to the consequence which flowed from the driving – either the death of or serious injury to a person. On this analysis, although there was only one act of dangerous driving there were 10 separate criminal acts, each such act defined by the death of or serious injury to a particular individual.[82] Cumulation was necessary, as Winneke P said, to ensure that none of those individuals became a ‘meaningless statistic’.
[82]See R v Bekhazi (2001) 3 VR 321, 332-3 (Vincent JA, with whom Charles JA agreed).

In my respectful opinion, the sentencing judge was fully entitled to conclude (as he did in the impugned passage) that T’s foreknowledge made cumulation ‘particularly’ appropriate. Unquestionably, T’s foreknowledge that a large number of people might be exposed to risk did illustrate, or underline, the appropriateness of orders for cumulation which recognised the individual deaths and the individual sets of serious injuries which his driving had caused. There is no substance in the contention that the orders for cumulation involved double punishment.

When it is recalled that cumulation of as much as 50 per cent (three years of a six year sentence) was upheld by this Court in Guaraglia,[83] and was ordered by this Court when sentencing in Solomon,[84] it can be seen that the orders for cumulation in the present case – one year (20 per cent) of the sentences for causing death, and three or six months (25–33 per cent) of the sentences for causing serious injury – were appropriately moderated to take account of considerations of totality.
[83](2001) 33 MVR 543.
[84](2002) 36 MVR 425.

Ground 3 must be rejected.

Total sentence twice the maximum penalty for a single offence

In submissions on the plea in mitigation, senior counsel for T argued that, whatever orders for cumulation might be made, the judge should not impose a total sentence which exceeded the maximum of five years’ imprisonment for one such offence. Pressed by the sentencing judge as to whether the putative ceiling of five years was said to exist as a matter of law or as a function of the principle of totality, senior counsel answered:

Theoretically [there is] no incompetence in law at all. I think in terms of fairness and jurisprudence the limitation is there and has always been recognised to be there, and the reason for the recognition, especially where one is dealing with a unitary offence in the sense of the one conduct, the one act, the one action, yes, there’s a string of consequences but the law has always taken the view that it punishes for moral culpability, and in terms of moral culpability there is one moral culpability here. … There is but one moral culpability, and in this instance an objective one found by a jury, that is driving dangerously in the circumstances.

The total effective sentence imposed on T was, as noted earlier, 10 years’ imprisonment, twice the maximum of five years which could be imposed on any one count. The judge expressly rejected the defence submission that the maximum should be viewed as a ceiling on the total sentence. No issue was taken on the appeal with his Honour’s statement that

Australian common law does not require that in the case of multiple similar offences arising from the one course of conduct, the total sentence must be no more than the maximum legislative penalty for one of the offences.[85]

[85]DPP v Towle (Sentence) [2008] VSC 101, [25].

His Honour went on:

[K]illing six persons and seriously injuring four others in the same course of conduct involves different criminality from killing or seriously injuring one person by that conduct. No court in Australia says otherwise. That is so both where intention is involved (not this case) and where knowledge of risk is involved (as here). There is no principle of law or of logic which requires that in the case of multiple offences arising from the one course of conduct, the total sentence must be no more than the maximum legislative penalty for one of them. To require that the total be no more than the maximum for one would indeed reduce human victims to mere numbers; or, in the words of the illustrious President in DPP v Solomon, to a ‘meaningless statistic’.[86]

[86]Ibid (citations omitted).

I respectfully agree. I would refer, as did the sentencing judge, to R v Wilkins.[87] That was a case involving three counts of culpable driving causing death. The New South Wales Court of Criminal Appeal rejected a submission that there should have been full concurrency of sentences:

Parliament has laid down in s 52A of the Crimes Act1900 (NSW) that the maximum penalty for culpable driving involving driving in a manner dangerous and causing death is five years and it seems extraordinary at the outset that it can be said that, whether you kill one or whether you kill fifty, the penalty is to be five years, provided you do it on the one occasion.
The reality on the situation surely is that drivers of all vehicles on the road must be taken to know that they can do enormous damage to life and limb if they drive irresponsibly, drive in a manner dangerous to the public.
The large vehicles which operate on the road today – and the appellant’s vehicle is in that class – are especially capable of producing enormous damage to human life if driven irresponsibly and it would extraordinary that a driver, knowing that he may, if he gets himself onto the wrong side of the road on a main highway, kill one or four or ten or a dozen people or a bus full of people, can come before a court and claim that he should be sentenced and kept in gaol in respect of the death of only one. To me that itself is demonstrative of the fact that the practice cannot be an inflexible practice and that it must give way to reason and common sense. The criminality and gravity of all the offences is not to be judged merely as if the appellant were charged under s 4(1) of the Motor Traffic Act 1909 (NSW) with dangerous driving. To mete out a penalty that recognises the actual consequences of his action is not unjust or unfair; indeed, it is wholly in accord with the ordinary principles of justice. Where the maximum penalty for any one offence is insufficient to reflect the gravity of the crime committed the court not only may but ought to impose cumulate sentences.[88]

[87](1988) 38 A Crim R 445, 449-50 (Lee CJ at CL, with whom Carruthers J agreed).

[88]Emphasis added.

As the sentencing judge said in his reasons, the limiting factor – in this case as in every other – was the principle of totality.[89] So much appears from the only authority relied on in support of this ground. In Postiglione v The Queen,[90] Kirby J cited with approval a passage from Clayton Ruby’s treatise on Sentencing,[91] to the effect that
[89]DPP v Towle (Sentence) [2008] VSC 101, [25].
[90](1987) 189 CLR 295, 340.
[91]Clayton Ruby, Sentencing, (4^th ed, 1994) 44-5.

[a] cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved …

With respect, this statement is plainly correct. Whether the cumulative sentence does offend the totality principle in a particular case will, as always, depend on the

circumstances.

In my view, the total effective sentence of 10 years did not offend against the principle of totality. T was found guilty of multiple acts of serious criminality. His dangerous driving ended the lives of six young people and seriously affected the lives of the four others who were seriously injured.[92] When regard is had to what I have already said about dangerousness of the driving and T’s heightened culpability because of his foreknowledge of risk, there is in my view no disproportion between the total effective sentence and the total criminality involved.
[92]Cf R v Musson [1997] 1 VR 656, 660–1.

For similar reasons, the ground of manifest excess – so far as it is directed at the orders for cumulation and the total effective sentence – must also fail. Ground 5 must be rejected.

For these reasons, the application for leave to appeal against sentence must be refused.

BUCHANAN JA:

I agree, for the reasons stated by the President, that the application for leave to appeal against sentence should be refused.

In addressing the statistics proffered by the Crown, the President has pointed out the wide variation in the facts constituting particular examples of the offences of dangerous driving causing death and serious injury. I would add that there are also significant variations in the personal circumstances of the offenders. The statistics provide only limited assistance in determining the appropriate sentence to be imposed in the case before a court, for they can ‘do no more than establish minimum and maximum sentences and the average and median sentences imposed over a particular, and necessarily arbitrary period’.[93]

[93]DPP v Maynard [2009] VSCA 129, [35] (Ashley, Redlich and Kellam JJA).

ASHLEY JA:

I agree with Maxwell P, for the reasons which his Honour gives, that the application for leave to appeal against sentence should be refused. I also agree with the observation made by Buchanan JA.

---

APPENDIX 1

N

Boobook Avenue

Myall Street

Party house

T’s direction of travel Collision point

TABLE A

Dangerous Driving Causing Death

Maximum Penalty: 5 years’ imprisonment[94]

[94]With effect from 19 March 2008, the maximum penalty was increased to 10 years: Crimes Amendment (Child Homicide) Act 2008 (Vic) s 5.

Matter	Individual Sentence(s) imposed	Plea (G or NG)	TES	NPP	Previous driving offences	Age	Alcohol/ drugs
R v Naumann [2006] VCC 810	4y	G	5y	3y	Driving without licence	over 26	0.109
R v Tiranatvitayakul [2006] VCC	9m	G	9m (suspended for 2y)	-	-	23	0.0
R v Oates [2007] VSCA 59	2y CBO*	G	2y CBO	-	Driving over limit	34	0.0 (‘not affected by alcohol’)
R v Atkinson [2007] VCC	8m	G	9m ICO	-	No previous convictions	21	0.0 (‘no effects of alcohol, drugs’)
R v Martinez [2007] VCC	12m**	G	2y 6m	21m	Speeding	25	0.0 (alcohol/ drugs not a factor)
R v Guganovic [2007] VCC 0012	2y 6m	G	2y 9m	12m	Minor registration offence	33	0.0 (alcohol/ drugs not a factor)
R v Malcolm [2007] VCC	6m	G	6m (suspended for 12m)	-	-	19	0.0 (no drugs or alcohol)
R v Plumpton [2007] VCC	12m	G	18m	9m	-	young	Had been drinking (police unable to obtain sample in time)
R v Guthridge and Roast [2008] VCC	3y	NG	G: 3y 6m R: 3y (12m suspended for 12m)	2y 6m	No	18 and 19	Judge’s comments extracted in footnote[95]
R v Cutting [2008] VCC 1699	18m	G	2y 11m (wholly suspended for 3y)	-	Driving over limit	32	0.0 (‘Testing revealed no alcohol or illicit drugs in your system’)
R v White [2008] VCC	2y	G	2y 18m (suspended for 19m) Guilty plea	-	No	29	0.118
R v Lambrou [2008] VCC	18m	G	18m (wholly suspended for 24m)	-	No	20	0.0 (alcohol/ drugs not a factor)
R v Aldridge [2008] VCC	2y 6m	G	2y 6m (18m suspended for 2y 6m)	-	Speeding (after DDD)	23	0.0 (alcohol/ drugs not a factor)
R v Bromilow [2008] VCC	16m	G	16m (3m suspended for 16m)	-	No	47	0.08-0.09
R v Mitchelmore [2008] VCC	18m	NG	18m (wholly suspended for 18m)	-	No	24	0.0 (alcohol/ drugs not a factor)
R v Daniels [2008] VCC	18m	G	18m (suspended for 2y)	-	4 (1 for careless driving; 3 for driving while suspended/disqualified)	22	0.0 (alcohol/ drugs not a factor)
R v Mosedale [2008] VCC	15m	G	15m (12m suspended)	-	No	33	Judge’s comments extracted in footnote [96]
R v Wilcox [2008] VCC	18m	G	18m (wholly suspended for 2y)	-	No prior convictions	55	0.0 (common features of dangerous driving were not present here:…alcohol or drugs…)
R v Mayne [2008] VCC	18m	G	18m (wholly suspended for 3y)	-	Speeding offence	21	0.0 (alcohol/ drugs not a factor)
R v Wells [2008] VCC	15m	G	15m (12m suspended) Guilty plea	-	No	36	0.0 (‘There is no evidence of … the use of alcohol or drugs’)
R v Underwood [2008] VCC	12m	G	12m (suspended for 2y)	-	Careless driving	26	0.0 (‘You were not affected by alcohol or drugs…’)
R v Sheedy [2008] VCC	2y	G	2y (suspended for 3y)	-	No	-	-
R v Dilling-Hansen [2008] VCC	12m	G	15m (suspended for 3y)	-	No	43	0.0 (‘there is no suggestion that you were affected in any way … by drugs or alcohol.’)
R v Leslie [2008] VCC	12m YTC	-	12m YTC	-	No	18	-
R v Buovac [2008] VCC 1734	2y	NG	2y (15m suspended for 2y)	-	Several, including driving carelessly; driving over limit	67	0.0 (‘alcohol was clearly not a factor’)
R v Jenkins [2008] VCC	15m	G	18m (suspended for 2y)	-	No	57	No drugs or alcohol involved
DPP v Neethling [2009] VSCA 116	2y***	G	2y 7m (sentence served in Youth Justice Centre)	-	No	18	0.0 (alcohol/ drugs not a factor)
R v Kalwig [2009] VSC 373	2y 6m	NG	5y	2y 9m	No	41	0.0 (alcohol/ drugs not a factor)
R v Paranort [2009] VCC 0149	3y	NG	3y 9m	2y 6m	Continued prior offending	young	0.0 (alcohol/ drugs not a factor)
R v Li [2009] VCC 0281	12m (wholly suspended 12m)	G	12m (wholly suspended 12m)	-	No	-	0.0 (‘There was no … alcohol or drugs…’)
R v Massari [2009] VCC	15m	G	15m (wholly suspended for 3y)	-	No	43	0.0 (‘alcohol, drugs… did not play any role in that collision’)
R v Osbaldeston [2009] VCC	18m	-	18m (wholly suspended for 2y)	-	Driving over limit; driving carelessly	27	0.0 (‘Testing revealed no alcohol in your system.’)
R v Burrington [2009] VCC	18m	G	18m (15m suspended for 12m)	-	-	25	Between 0.065 and 0.097
R v Watson [2009] VCC	15m	G	15m (suspended for 3y)	-	No	-	0.0 (No evidence of alcohol)

[95]Roast ‘negative for alcohol and drugs’; Guthridge ‘fled the scene … it was not possible to independently establish whether you had consumed alcohol or drugs … and I make no adverse assumption in this regard …’.

[96]‘Also because you had within the 24 hours or so before the driving, taken a small amount of amphetamine and ecstasy to help you stay awake, which in all probability caused ‘rebound fatigue, as described by Dr O’Dell. The consequence was that you fell asleep at the wheel, suddenly and within seconds. As I have said, you did not know that you were se sleep deprived, that it was dangerous to drive and I accept that if you had, you would not have driven. Whilst that finding, like the use of the drugs, is relevant to you moral culpability, it does not of course excuse you.’

DDD: Dangerous Driving Causing Death
DDSI: Dangerous Driving Causing Serious Injury
A dash (‘–‘) indicates information unavailable or not applicable

* Crown appeal dismissed [2007] VSCA 59
** Crown appeal dismissed [2008] VSCA 165
*** Crown appeal allowed: re-sentencing includes double jeopardy discount

‘0.0 (alcohol/drugs not a factor)’: This notation indicates that there is no reference to alcohol in the reasons for sentence and, consequently, it is assumed the alcohol level was 0.0.

TABLE B

Dangerous Driving Causing Serious Injury

Maximum Penalty: 5 years’ imprisonment

Matter	Individual Sentence(s) imposed	Plea (G or NG)	TES	NPP	Previous driving offences	Age	Alcohol
R v Naumann [2006] VCC 810	3y	G	5y	3y	Include driving without license	26	0.109
R v Atkinson [2007] VCC	1m; 4m	G	9m ICO	-	-	21	0.0 (‘no effects of alcohol, drugs’)
R v Luis [2007] VCC	12m	G	18m (12m suspended for 18m)	-	Several speeding offences	20	0.0 (‘You had not consumed any alcohol, you had not consumed any drugs’)
DPP v Oates [2007] VSCA 59*	2y CBO	G	2y CBO	-	Driving over alcohol limit	34	0.0 (‘not affected by alcohol’)
R v Guganovic [2007] VCC 0012	9m	G	2y 9m	12m	Minor registration offence	33	0.0 (alcohol/ drugs not a factor)
R v Pope [2007] VCC	12m	G	3y (wholly suspended)	-	No	22	0.0
R v Rollins [2007] VCC	2y	-	2y (15m suspended for 3y)	-	-	23	0.149
R v Minster [2008] VCC	16m	G	4m of 16m sentence served cumulatively on sentence for other offences.	-	Dangerous driving, speeding, careless driving	19	0.0 (‘You were not affected by drugs or alcohol.’)
R v White [2008] VCC	3m	G	2y (18m suspended for 18m)	-	no	29	0.118 (2 hours after offence)
R v Muscat [2008] VCC	2y	G (late)	2y 4m	18m	Subsequent offences including careless driving	17	0.0 (alcohol/ drugs not a factor)
R v Lambrou [2008] VCC	6m	G (after start of trial)	18m (wholly suspended for 24m)	-	Cautioned ten days before offence (including driving irresponsibly)	20	0.0 (alcohol/ drugs not a factor)
R v Tozer [2008] VCC	3y 6m**	G	4y 6m	3y	Driving over 0.5 limit	35	0.181
R v Noble [2008] VCC	15m	G	19m	10m	No	19	0.0 (alcohol/ drugs not a factor)
R v Bowen [2008] VCC	2y	G	2y 6m (wholly suspended for 3y)	-	No	19	0.175
R v Sredovic [2009] VCC 0077	2y	G	2y (wholly suspended for 3y)	-	No	23	0.0 (alcohol/ drugs not a factor)
R v Dessman [2009] VCC 0478	12m	G	12m (wholly suspended for 12m)	-	Traffic infringement; fine for exceeding blood alcohol limit	21	0.0 (‘preliminary breath test…was negative for the presence of alcohol.’)
R v McCubbin [2009] VCC	2y 6m	G	2y 6m (12m)	-	Two sets of offences, committed 14 and 8 years before this offence	23	0.073
DPP v Neethling [2009] VSCA 116	12m; 8m***	G	2y 7m (Youth Justice Centre)	-	No	18	0.0 (alcohol/ drugs not a factor)
R v Clark [2008] VSC	2y	G	7y	5y	Prior convictions including exceeding speed limit	31	0.0 (alcohol/ drugs not a factor)
R v Jenkins [2008] VCC	6m	G	18m (suspended for 2y)	-	No	57	No drugs or alcohol involved

DDD: Dangerous Driving Causing Death
DDSI: Dangerous Driving Causing Serious Injury
A dash (‘-’) indicates information unavailable or not applicable

* Crown appeal dismissed
** Application for leave to appeal refused
*** Crown appeal allowed: resentencing includes double jeopardy discount

COUNT	OFFENCE	MAXIMUM	SENTENCE	CUMULATION
1	Dangerous driving causing death	5y	3y 6m	Base
2	“ “ “ “	5y	3y 6m	1y
3	“ “ “ “	5y	3y 6m	1y
4	“ “ “ “	5y	3y 6m	1y
5	“ “ “ “	5y	3y 6m	1y
6	“ “ “ “	5y	3y 6m	1y
7	Dangerous driving causing serious injury	5y	2y	6m
8	“ “ “ “	5y	1y	3m
9	“ “ “ “	5y	1y	3m
10	“ “ “ “	5y	2y	6m
Total Effective Sentence Non-Parole Period	10y 7y

Date of conviction	Relevant Offence(s)	Sentence
August 1995	Driving with blood alcohol concentration over 0.05 per cent.	Fine; licence cancelled; 11m disqualified.
April 2000	Driving unregistered vehicle (2 charges).	Fine.
October 2001	Driving whilst unlicensed. Driving with blood alcohol concentration exceeding 0.00 per cent.	Fine; licence cancelled; 15m disqualification.
April 2002	Driving whilst unlicensed. Driving unregistered motor vehicle.	Fine; licence cancelled; 6m disqualification.
May 2002	Driving whilst disqualified (2 charges). Driving unregistered vehicle (2 charges).	Aggregate fines $3700; licence cancelled; 12 m disqualification.
May 2002	Driving whilst disqualified.	ICO.*
June 2002	Driving whilst disqualified. Driving unregistered vehicle.	Fine; 7m imprisonment.*
November 2002	Driving whilst disqualified (2 charges). Driving unregistered vehicle (2 charges).	Fine; 2m imprisonment.

[2009] VSCA 280

3 December 2009